A segment of the 3D printing (3DP) community, known as Makers, is using the concept of crowdsourcing as a sword to oppose 3DP-related patent applications, potentially creating problems for patent applicants everywhere.

To understand why and how Makers are mobilising to challenge patents, one must first understand what 3DP is, and the composition of the 3DP community.

3D printing—more formally known as additive manufacturing—is a technology that creates three dimensional objects from CAD files. There are also many legacy and emerging 3DP technologies.

Generally, 3DP works by fusing layer upon layer of materials, such as plastics, powder metals, and ceramics, to build a final, fully formed product, much as Athena sprung full-blown from the head of Zeus. This process requires a digital 3D model of the product, stored in a CAD file, and a 3D printer.

Digital product models can be obtained by either:

Designing the product with a CAD program;

Downloading an existing CAD file from the Internet; or

Scanning an existing product with a 3D scanner to create a CAD file.

Further, almost anyone can buy a 3D printer today; they are sold through Skymall and at Staples. Where 3DP was once cost prohibitive for most, industrial grade and home printers are now available at reasonable prices.

People can and are using 3D printers to make just about anything. Ordinary people are using 3D printers to make things like working vinyl records, guns, cases for cellphones, jewelry, art, and even 3D printers that can self-replicate. And while 3DP is starting to tilt past the tipping point into the mainstream, the basic technology has been around since the 1980s.

The 3DP community consists of essentially four segments: small and large scale, closed and open. Although the lines between them can be fuzzy, the large-scale segment is essentially the industrial segment, which relies on a closed platform, and therefore on intellectual property.

Of equal—and some would say more—significance, is the small-scale segment, which consists of entrepreneurs, garage, basement, and school lab innovators, and kids, many of whom are dedicated to open availability of the technology. They are called “Makers.”

Makers are a growing and potentially powerful force, similar in some ways to PDP music file sharers, but more organised. They are a community and decide, collectively, whether and what intellectual property is appropriate in the 3DP world. Makers would keep 3DP open and unhindered by the constraints of intellectual property.

According to the Electronic Frontier Foundation, “the incremental nature of innovation in 3D printing makes it particularly unsuitable for patenting” and “openness often outperforms the patent system at spurring innovation”.

Thus, organisations like the EFF are marshaling the Makers, using crowdsourcing to identify prior art to challenge 3DP-related patent applications they view as “threatening” or “dangerous".

Specifically, the EFF website asks Makers to help identify 3DP-related patent applications to attack. The EFF has also partnered with Ask Patents to harness the power of crowdsourcing to find the best available prior art. Ask Patents allows anyone to make a “call for prior art” about any application. After a call for prior art has been made, visitors to a webpage dedicated to the application can identify possible prior art and rate it until the cream rises to the top.

Using crowdsourcing to identify prior art may be particularly effective for 3DP-related applications. Because 3DP has been around for over 30 years and has been widely adopted and developed by thousands of Makers and the industrial sector, there could be tonnes of prior art.

Moreover, the open nature of the Maker movement makes Makers very receptive to collaborative efforts to identify prior art and challenge patent applications. In fact, Makers, led by the EFF or others, have already used the U.S. Patent Office’s preissuance submissions process to file prior art to challenge 3DP applications. As of May 2013, the EFF filed crowdsourced prior art in connection with six 3DP-related patent applications.

Crowdsourcing of prior art has profound implications for patent applicants everywhere. Most obviously, this model could be copied in any area of technology with an active open platform movement. And the internet and social media are very effective tools for forming such movements for any type of technology. In fact, the EFF plans to extend its crowdsourcing prior art model to mesh networking technology.

Additionally, crowdsourcing of 3DP-related prior art could reduce the number and breadth of patents that issue in the 3DP space. A similar effect could occur in connection with any technology with a community using such a crowdsourcing prior art model.

It will be interesting to see how the Makers’ strategy plays out. Will fewer or narrower patents issue in this space? Only time will tell. We plan to watch it closely.

John Hornick is a partner and Anita Bhushan is an associate with the Finnegan IP law firm, Washington, DC.

Hornick recently presented at LESANZ on 3D printing, the full article can be viewed here.

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